In defence of NonCommercial clauses

April 18, 2012April 23, 2012

Does NC lock down content?

Creative Commons has released the first draft of the 4.0 version of its licences for public comment, and while there is much to discuss about it, I will be doing it in a later post. The following words are prompted by something that I have noticed arising from the public discussion taking place in one of the mailing lists dedicated to the topic, and it is something also that continually bothers me in most public discussion of open licensing in general. It seems to me that a significant number of those who participate in these discussions are opposed to the very existence of NonCommercial clauses in Creative Commons licences, and another good number dislike it, but endure its existence. All throughout long threads dedicated to the NC element, the attacks on NonCommercial clauses are relentless.

The cause for this vocal opposition stems from a combination of factors. Firstly, a lot of participants in those discussions come from the Free Software movement, where NC clauses are considered anathema to the development environment; anything that is considered NonFree is incompatible with the GPL, which is the standard for Free Software. Secondly, in 2006 Benjamin Mako Hill and Erik Möller created the influential Definition of Free Cultural Works (DFCW), which states clearly that NC clauses are not Free (in the freedom sense, not the free beer one). The DFCW was adopted by the Wikimedia Foundation, and therefore the dislike of NC within the open community was cemented.

Given the volume of opposition to NC, I would like to make a small defence of those clauses. I am not interested in attacking those who prefer to use Free licences only, I agree with most of the arguments in favour of free works, and I have nothing against that position. I do however disagree strongly with the utter demonisation of NC. I have to admit that I have always used NC licences, so I can talk from experience.

The first thing to note is the continuing popularity of NC clauses. If you were to read any random discussion on CC-Licenses or any similar list, you would assume that there is only a small minority of users who prefer NC licences, but in most CC licence metrics and statistics that I have read over the years, NC elements continue to be very popular by any measure. Historically, it seems like the NC clause is present in around 60% of works licensed with CC (if not more).

Why the popularity? I have been presenting about Creative Commons since 2004 to all sorts of audiences around the world. When preaching to the converted (free software advocates, developers, and CC communities), it is clear that NC is not favoured. However, when presenting to the general public, most people dig the NC clause. I have been pleasantly surprised by the willingness of people to share their work, but they are not happy at the prospect of some nameless corporation coming to take their work and profit from it. It is very human to rebel against the prospect of future unfairness, and this seems to drive the popularity of NC clauses. In my experience, it is easier to sell CC to wider audiences with the NC clause.

My personal experience with NC clauses has been very positive. Since 2007, all SCRIPTed articles have been using BY-NC-ND Scotland licence, and in 14 issues since only one person has asked to change the licence to remove the NC element. This blog has always been published with an NC licence, and while it is not intended to gain any money, it has allowed me to get some profits here and there. For example, all the blog’s content is offered through a commercial syndication service that sells content to Amazon, Thompson, Lexis and other aggregators, which gives me about $50 USD per year. I won’t make a living from this, but it is nice to be able to afford a good bottle of whiskey from time to time from money obtained through these pages. Similarly, I just sold an article to a large Canadian textbook publisher for a small fee. Were I not using an NC licence, it is possible that I would not have been able to get money in both instances. To me being able to get that money from time to time is more of a psychological incentive to continue writing.

More importantly, the NC element allowed me to sell the idea of releasing a book under Creative Commons to a UK academic publisher, who had never done it before. In the end they were happy to maintain control of all commercial uses, and to allow NonCommercial uses of the work. They were worried that if they did not have the NC clause, a competitor could simply reprint the book in its entirety and slap a ShareAlike licence to it.

Here is a list of some of the most common arguments that I have read throughout the years against NC, with my comments:

NC should be destroyed and cast into the fiery chasm from whence it came. Thankfully this is a minority opinion that deserves little comment, it is given by the likes of those who believe that everyone should be forced to install Linux tomorrow.

NC elements pollute the commons because they create incompatible works that cannot be mixed. This seems to be the strongest argument against NC, and it would be fair if one assumes that the objective is to create a large pool of works where everything should be remixed. I do not believe this to be the case, as cultural works are very different to software. In my opinion, it is more important to enable sharing, and compatibility is a desired secondary goal.

NC clauses are complicated, and therefore difficult to enforce. Funnily enough, in most cases where CC has been enforced in court, the NC element was present, and the courts had no problem applying the NC clause (examples here and here).

Creative Commons should strive to diminish its importance by renaming it, offering fewer options, or even demoting it in thelicence chooser. This is an interesting idea, but again assumes that it is wrong to want to use an NC licence. I do no think this to be the case.

It is unfair for you to profit from your work, and not allow others to do the same. I have seen variations of this from time to time, I have no real response to it because the thought behind it seems to be alien to me. I find it fair that I should profit from my work.

People who use NC do not know any better and should be educated into the right way of doing things. This a surprisingly popular view, yet I find it highly patronising and insulting to say the least. There is a non-negligible number of people who are quite aware of the reason why they use NC.

People who use NC are not really into Free Culture. Ah, the No True Scotsman fallacy!

People who use NC are evil, bad, or in the pocket of Apple and/0r Microsoft. Have you taken your frog pills today?

In the end, the best argument that I have in favour of the existence of NC clauses is freedom itself. It seems fundamentally wrong to propose freedom as the highest principle in the open licensing ecology, only to begrudge those who choose to exercise their freedom in ways that those who have defined it narrowly disapprove of. Freedom comes from recognising that there are various reasons why people make licensing decisions, and that those may be different from your own.

But do not take my word about all of this. Will you consider the advice of one Richard M. Stallman? Surprisingly (at least for me), he has agreed that non-free elements are not so problematic in non-technical fields. In an email exchange he explains:

“I think that is the right definition of “free”, but I don’t think that non-functional works must be free. It is enough for them to be sharable. It is nice if other works are free, but not ethically imperative in my view.”

He then explains that art and software are different:

“If you use something to do jobs in your life, you must be free to change it today, and then distribute your changed version today in case others need what you need. Art contributes something different to society. You appreciate it. Modifying art can be a further contribution to art, but it is not crucial to be able to do that today. If you had to wait […] for the copyright to expire, that would be ok.”

To stress this point, RMS published yesterday an article in The Guardian under an Attribution NonDerivatives licence, which I may add, does not meet the requirements of the Freedom Defined site.

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Comments26

If your notion of freedom is "I am free to do whatever I want, even when it involves standing in the way of other people to do whatever they want," then yes, denigrating the freedom to use a noncommercial clause because it isn't really "free" is kinda ironic. If your notion of freedom, though, is that anyone is free to do whatever he or she wants to do, so long as it doesn't involve interfering with others' similar freedoms, then denigrating the use of a noncommercial clause because it isn't really "free", is perfectly consistent and deserves some attention.

Thanks for the excellent comment. My own definition is closer to the latter, and you have hit on the reason why there seems to be such animosity against NC.

Fundamentally, there is a very good reason why freedom is so important in software, and why it is not so important in cultural works. If you find code that helps you do something and it's not free, then you have hit a problem. If you're writing a commercial edited book of blog posts regarding Creative Commons, and you find this post, your book will not be poorer for not including it. Or you could just ask, and chances are I would agree to share it for free.

I disagree that disallowing inclusion of an interesting essay in a book is not a problem, because it limits the distribution of culture. I also disagree that this is the only, or even biggest, hindrance a non-commercial license imposes on us. For instance, it makes it difficult to sort out where one can reprint it: does a website with ads on it count as commercial? Even if the specific license were to include specific guidance in cases like that, there would always be edge cases, and people who are not trained at making sense of dense legalese might just end up avoiding the essay out of fear of potential legal consequences.

I agree there is a useful purpose to a non-commercial license, just as I agree there is a useful purpose for open source software that runs on MS Windows as well as on an open source operating system. That purpose is to act as a "gateway drug" of sorts. In the software world, one of the biggest hindrances in getting people to give up a closed source platform like MS Windows is the availability of familiar applications on other platforms, so if an open source application is ported to MS Windows it reduces that barrier to (later) migration. In the case of English language works (for instance), the gateway targets not recipients, but distributors — it helps people who would otherwise be afraid to dip their toes into the waters of business models that do not depend on copyright to get more comfortable with it, in small steps. The key, though, is then to keep up the pressure to move people farther and farther away from relying on copyright for their business models — for their sakes, as well as everyone else's, because in the long run it's going to be the business models that do not rely on copyright that will be the most resilient and long-term successful.

Anyway, your argument relies on a false distinction between licensing contexts. Software can be a cultural work, too. I'm a professional writer in English as well as multiple programming languages, and from where I'm sitting, trying to distinguish between them when choosing whether it's okay for licenses to be more or less restrictive is creating an unnecessary, artificial, and ultimately meaningless distinction that hurts everyone involved, including the person coming up with excuses to use more-restrictive licenses.

In fact, if anything, I'd say that more-widespread distribution by any means at all is more important for writings in natural languages than those in programming languages, because of the fact that a cultural work that ends up too restricted in its distribution will eventually fade away into obscurity, taking its author's name with it.

<cite>"I disagree that disallowing inclusion of an interesting essay in a book is not a problem, because it limits the distribution of culture"</cite>

If you want to share the excellent essay in a book, it is still easily done by providing a small quote, a title and a link. This is yet again a big difference between software and creative works, linking libraries is just not the same

<cite>I also disagree that this is the only, or even biggest, hindrance a non-commercial license imposes on us. For instance, it makes it difficult to sort out where one can reprint it: does a website with ads on it count as commercial? Even if the specific license were to include specific guidance in cases like that, there would always be edge cases, and people who are not trained at making sense of dense legalese might just end up avoiding the essay out of fear of potential legal consequences.</cite>

The current interpretation is that adverts are fine and don't constitute commercial use. This is probably going to be included into 4.0. As for other borderline cases, a simple email will suffice in most instances. I like how xkcd uses NC licence, and has placed an easy-to-understand disclaimer explaining what this means. Furthermore, I have a friend who used one of Randall Munroe's images for a commercial book cover. All she had to do was send an email and ask, and he said yes. NC is not this big barrier to sharing.

<cite>In fact, if anything, I’d say that more-widespread distribution by any means at all is more important for writings in natural languages than those in programming languages, because of the fact that a cultural work that ends up too restricted in its distribution will eventually fade away into obscurity, taking its author’s name with it.</cite>

I disagree, sharing open content online is easy regardless of licence restrictions. If someone likes an article, they share it via link, they don't have to copy in its entirety in another blog, or put it in a book and print it. Similarly, I have never seen any evidence that indicates that content released under a less restrictive licences gets more hits than something under NC.

Similarly, you seem to assume that using NC will mean that the author will eventually "fade away into obscurity". Are you sure that you want to make that claim? People have become famous through publishing under All Rights Reserved, and offering works under Free licences does not guarantee success.

Check out the definition of in, regarding the matter of sharing an essay in a book. I guess, though, your point is that you don't want your essay in a book. Mission accomplished, in that case.

The current interpretation is that adverts are fine and don’t constitute commercial use.

Please cite caselaw so I can be sure this would mean I'm protected, rather than just taking the word of an armchair "lawyer".

An email might suffice — if you haven't been hit by a bus, if you choose to respond, if the email address I use to try to contact you has not been abandoned or compromised, and so on.

NC is not this big barrier to sharing.

. . . except when it is.

It's obvious you disagree, but saying so then offering a few special-case scenarios doesn't dispute the rest of what I've said. There are many circumstances and contexts where a short snippet and a "link" (as in, say, a print book not intended to require a nearby Internet connected computer to get full value from reading) is not a reasonable answer to the problem.

I didn't say that an author using a non-commercial license will necessarily fade away into obscurity. Please don't put words in my mouth so you can argue against a strawman. I pointed out that limiting distribution increases the likelihood that the author's works and name will fade from public knowledge, and make less of an impact in the world. My point was not about guarantees — it was about probabilities. It's you who made claims that do not stand up to scrutiny when you claimed I said anything about guarantees and certainties.

<cite>"I guess, though, your point is that you don’t want your essay in a book. Mission accomplished, in that case.</cite>

The point is that it does not matter if the blog post is in the book in its entirety, a similar effect can be achieved with a link or a reference. In fact, chances are a random link on Twitter will generate more hits than having the entire article in a book. I feel like I have to restate the obvious, my point is that in the large scheme of things, it doesn't really matter if the work is Free or not.

Besides, you keep assuming that just because something is not Free it will not get included in other works. This is blatantly untrue, publishers pay for work, and I have also agreed to include academic articles in educational book collections when asked (for free).

<cite>"There are many circumstances and contexts where a short snippet and a “link” (as in, say, a print book not intended to require a nearby Internet connected computer to get full value from reading) is not a reasonable answer to the problem."</cite>

Because we all know that it is impossible to check a link or a URL at a later time when an Internet connection is available…

<cite>"I didn’t say that an author using a non-commercial license will necessarily fade away into obscurity. Please don’t put words in my mouth so you can argue against a strawman. I pointed out that limiting distribution increases the likelihood that the author’s works and name will fade from public knowledge, and make less of an impact in the world."</cite>

You said, and I quote: "…because of the fact that a cultural work that ends up too restricted in its distribution will eventually fade away into obscurity, taking its author’s name with it." You said WILL, not MIGHT, the certainty is clearly in what you wrote.

If you assume that the only effect that matters is that you get traffic to your website, and that people are as likely to link to your website with a snippet quoted from your essay as they are to link to it as part of an attribution statement after quoting the entire essay, then sure — you get the same effect. Someone editing and assembling a book of essays, on the other hand, is pretty obviously not going to be happy with assembling a fifteen page book of Twitter-length snippets of text with URIs printed under them.

I'm a pretty strong supporter of the notion that what people who still think the Internet is a newfangled, confusing contraption call "new media" is something that should be embraced and leveraged to positive effect. In fact, it is in part because of my embrace of what people like Mike Masnick are calling the "economics of abundance" that I am able to look at the situation without the biases of people used to traditional content industry focus on artificial scarcity as a means of generating revenue, and come to the conclusion that the single most important change in our business models we can make is probably to develop models that in no way, shape, or form assume any ability to control distribution beyond choosing the time, place, and form of initial publication. Even so, I do not so casually and unthinkingly dismiss the importance of paying some attention to somewhat more traditional forms of publication as you do — because the fact the world is evolving away from assuming publication is a tedious process of typesetting, printing, advertising, shipping, and retail sales from physical storefronts does not alter the fact that it is attention that is the real scarce resource here, and delivering complete works in conveniently packaged, homogenously presented formats often serves the information consumer's needs better than scattered snippets that add up to a whole lot of nothing. A book full of snippets will almost certainly do nothing but bore people and consign your work to the dustbin of history.

With that in mind, it quite definitely does matter whether the essays that might be collected in such a book are "Free" or not, because when the editor of a collection of essays is considering inclusion of two works in such a collection, the guy whose work is more liberally licensed is going to get the nod and the attribution, while the guy whose work is less liberally licensed is going to get ignored.

you keep assuming that just because something is not Free it will not get included in other works

There you go again, trying to put words in my mouth. No, I don't assume that.

I simply point out that your work is less likely to be included in other works when it is restricted in a way that requires more effort and more legal compatibility issues when trying to include it. The very fact that Carlos can cite a specific case of this occurring is clear evidence that this is the case, at least sometimes, and pretending that is never the case does you no good. The fact you "have also agreed to include academic articles in educational book collections when asked (for free)" has nothing to do with it.

Because we all know that it is impossible to check a link or a URL at a later time when an Internet connection is available

. . . because we all know that answering a valid point by pretending a different point was made is a reasonable response. Oh, wait — no it isn't. It's just a strawman fallacy.

You said WILL, not MIGHT, the certainty is clearly in what you wrote.

Define "too restricted" for me. The "might" comes in with the question of whether, in a specific case, a non-commercial license is "too restricted" to reach above that threshold to achieve enough widespread distribution so that it will not end up forgotten and unacknowledged.

<cite>Someone editing and assembling a book of essays, on the other hand, is pretty obviously not going to be happy with assembling a fifteen page book of Twitter-length snippets of text with URIs printed under them.</cite>

That is not what was meant, that notion is utterly silly. I do not propose that people should reprint tweets, I mean that in a world of sharing digital works, content is one click away, and the same effect can be achieved by linking to a work than to include it in its entirety.

<cite>… because when the editor of a collection of essays is considering inclusion of two works in such a collection, the guy whose work is more liberally licensed is going to get the nod and the attribution, while the guy whose work is less liberally licensed is going to get ignored.</cite>

This assumes that editors make decisions solely based on licensing, which is not the case in my experience. Email has worked wonders for me in the past in this regard. The cover of my book is an image released under BY-NC, and I could have perfectly chosen a Free image from Flickr, but wanted that image. I sent an email to the author and they authorised me to use the picture for commercial purposes without having to pay.

In SCRIPTed, we often receive requests from book editors from developing countries asking for reprint permission of articles (which are released under NC licence as I have mentioned). The authors retain copyright, and always have allowed reprint. I have done so in a couple of occasions as well.

So on the one hand I have had real life experience that NC has not been a barrier to sharing. On the other hand, we have your continuing assertion that editors will choose content based on Free licensing. If an editor wants the content, they will ask for it, and even pay for it. Most people do not make decisions based on ideological considerations.

<cite>The very fact that Carlos can cite a specific case of this occurring is clear evidence that this is the case, at least sometimes, and pretending that is never the case does you no good.</cite>

Sigh… for someone who complains of strawman arguments, you seem to be quite adept at creating your own. I never said that it doesn't happen, my point from the start is that even if you cannot use the work, this is not such a big problem as it would be with software. It's the author's prerogative to make a licensing choice which may forbid commercial uses in the future. There are borderline cases in which people will not use the NC work (I believe that Carlos was unjustified in his extreme care, he's also from Costa Rica, and nobody ever sues anyone here for copyright infringement or licence breach, we are a non-litigous bunch, but that's besides the point). The point is that he could continue with his event, he just chose other music.

That is fine. The authors chose NC, and this is an acceptable strategy on their part. So they didn't get played in one event. That is their choice. Dare I say, they were free to do that.

As an NC user, I do not lose sleep over the fact that some editor somewhere may want to use a blog post and cannot do so because of my licence choice. They have my email, if they choose not to contact me, it's their fault as far as I'm concerned, people can easily and freely access the content otherwise.

Only time will tell if this choice will relegate me to the dustbin of history, as you keep implying. So far I'm doing OK for a Costa Rican legal academic and itinerary consultant.

Again, this is all that I am stating. It works for me.

A point of order, I'm abandoning replying to the second message, it's getting a bit unwieldy (dammit Jim, I'm a lawyer, not a WordPress wizard).

I do not propose that people should reprint tweets, I mean that in a world of sharing digital works, content is one click away, and the same effect can be achieved by linking to a work than to include it in its entirety.

I'm not talking about reprinting Tweets, either. I'm talking about books, and you're talking about making content "a click away" from a book, with nothing but the equivalent of a tweet excerpted from an essay.

This assumes that editors make decisions solely based on licensing, which is not the case in my experience.

>

Sometimes, licensing trumps other concerns — such as when publication is self-funding and one of the licenses in consideration is only available under a license that prohibits inclusion in such a work without getting sued.

I sent an email to the author and they authorised me to use the picture for commercial purposes without having to pay.

You're lucky that worked out for you — and completely missing the point that this is not a 100% solution (or probably even a 50% solution). Read some of my earlier commentary here to see why. Ignoring my points does not refute them.

So on the one hand I have had real life experience that NC has not been a barrier to sharing.

You still seem to think that if something works a few times, it must work all the time. Why do you keep saying things that suggest you think that? Do you really, truly believe that?

On the other hand, we have your continuing assertion that editors will choose content based on Free licensing.

All else being equal, they probably will. Why jump through bureaucratic hoops or risk legal saber-rattling and possible infringement suits when there are easier, safer options available?

Most people do not make decisions based on ideological considerations.

Some will — and for the rest, convenience and safety trump both ideology and your fantasy world where there is no convenience or safety cost perceived in dealing with non-commercial licensing.

I never said that it doesn’t happen, my point from the start is that even if you cannot use the work, this is not such a big problem as it would be with software.

What you have been saying is that you will make exceptions, if you feel like it, but usually you just want people to link to your original content from their printed, dead tree format books, and there's no problem at all with non-commercial licenses because there just isn't. Then you've gone on to ignore my points, and accuse me of employing a strawman fallacy when I just make reference to a real-world example that shows how a more restricted work is less likely to be included in a collection. How the bloody blue hell does citing an example of restrictively licensed content not getting included in what amounts to a performance collection because of that licensing, to demonstrate the fact that restrictively licensed content is less likely to be included in a collection, a straman fallacy? You're high, you're confused, or you're screwing with me.

It’s the author’s prerogative to make a licensing choice which may forbid commercial uses in the future.

I'm aware of that fact. Check the law; it's pretty clear. This has nothing to do with what I've been saying, other than the simple fact it creates the situation I address. It disputes nothing I've said. I never said you are incapable of licensing something however you like, so long as the license stands up in court.

There are borderline cases in which people will not use the NC work (I believe that Carlos was unjustified in his extreme care, he’s also from Costa Rica, and nobody ever sues anyone here for copyright infringement or licence breach, we are a non-litigous bunch, but that’s besides the point).

The borderline is the problem — and it's constantly moving closer and closer to the core of restrictive licensing, as people are leveraging free distribution methods more and more to improve the reach of their works.

You also seem strangely unaware of the fact that the US (for instance) reaches into countries like the UK to extradite people for things that don't involve copyright infringement, and don't even involve facilitating copyright infringement, but in fact involve nothing but linking to people who facilitate copyright infringement. If someone uses a non-commercial work under US copyright in a commercial endeavor by US law, that's a direct infringement of copyright, and even if the alleged infringer can get the case thrown out of court after that person's government allowed him or her to be kidnapped by US law enforcement agents to stand trial, and spent most of his or her life savings fighting the charges, that person gets a hollow victory at best.

The point is that he could continue with his event, he just chose other music.

. . . which leads back to my earlier statements to the effect that an author/composer of a work gets less publicity, less distribution, and less cultural significance and durability, thanks to the choice of a non-commercial license.

They have my email, if they choose not to contact me, it’s their fault as far as I’m concerned, people can easily and freely access the content otherwise.

It seems strange to me that you cannot see the value in being more widely published, of having a more widely recognized name as a writer.

Only time will tell if this choice will relegate me to the dustbin of history, as you keep implying.

Only time, I suppose, will tell whether you will eventually learn the difference between "will relegate" and "increases the likelihood that you will be relegated".

By the way, WordPress sucks. A competent web developer — not even expert; just competent — could produce something better, given the features of WordPress I actually see you using here, in a few days.

<cite>Sometimes, licensing trumps other concerns — such as when publication is self-funding and one of the licenses in consideration is only available under a license that prohibits inclusion in such a work without getting sued.</cite>

But as I keep saying, this doesn't preclude the editor from simply sending an email and asking the author. You keep offering a hypothetical editor who doesn't have access to email and therefore finding NC content is an insurmountable barrier. I keep offering examples to the contrary. True, existing examples that people are more flexible than the fantasy of ghettoised content. Editors do email authors to obtain permission to use the content, it has happened to me.

<cite>You’re lucky that worked out for you — and completely missing the point that this is not a 100% solution (or probably even a 50% solution). </cite>

I am not ignoring your points, I am offering examples that refute your assertions. You continue to state that somehow placing an NC clause to a work creates a barrier to people re-using the content. In my experience, this has not been the case whenever I have wanted to use NC content.

<cite>Some will — and for the rest, convenience and safety trump both ideology and your fantasy world where there is no convenience or safety cost perceived in dealing with non-commercial licensing.</cite>

It is not a fantasy world when, time after time, I keep offering examples where myself and people I know have been able to use NC content with no problem whatsoever. The fantasy world is one in which people do not have access to email.

<cite>…which leads back to my earlier statements to the effect that an author/composer of a work gets less publicity, less distribution, and less cultural significance and durability, thanks to the choice of a non-commercial license.</cite>

But that is the author's prerogative. I favour choice over a mythical commons where everything is remixable. Similarly, I think you continue to overplay the way in which NC is a barrier to someone who is determined to share that content. You continue to ignore the examples that I have given where my content has been reused commercially, or where I have used NC content commercially simply by asking.

<cite>How the bloody blue hell does citing an example of restrictively licensed content not getting included in what amounts to a performance collection because of that licensing, to demonstrate the fact that restrictively licensed content is less likely to be included in a collection, a straman fallacy? </cite>

It is a strawman because you keep either missing my point, or keep misrepresenting it. Here are my two main claims again:

1. I do not think that NC is as much of a barrier to sharing as you clearly state. I have offered real personal examples where I and others have been able to successfully reuse NC content.

2. Even if a person cannot share NC content (I have never claimed that this never happens, hence the strawman), this is not problematic from the user's perspective, as they can use other content.

<cite>You also seem strangely unaware of the fact that the US (for instance) reaches into countries like the UK to extradite people for things that don’t involve copyright infringement, and don’t even involve facilitating copyright infringement, but in fact involve nothing but linking to people who facilitate copyright infringement.</cite>

Talk about scaremongering! I am perfectly aware of the realities of copyright enforcement, and the application of your scenario to open content is laughable to say the least. Are you really suggesting that the power of the US enforcement machine will fall upon anyone who ever misuses an NC licence? Really? The O'Dwyer and Megaupload cases are the outliers, the exceptions (and Dotcom may not even be extradited). The reality is that here in Costa Rica people infringe copyright every single day in events, bars, cafes, businesses and concerts, and not a single one is extradited. The reality is that copyright infringement is rarely a criminal offence, and when it is, scale matters. Risk assessment is an important element in making decisions about licence use as well.

<cite>It seems strange to me that you cannot see the value in being more widely published, of having a more widely recognized name as a writer.</cite>

I have not seen any evidence whatsoever that my using an NC licence has deterred anyone from sharing my content. If an editor is unable/unwilling to reach me to simply ask if they can use the content, then I would be extremely surprised if their reuse would have garnered significant numbers of readers. Use of email is sort of a Darwinian filter

Moreover, choosing NC is part of a strategy. I am willing to concede that some person cannot reach me in the future, and that they would not be able to share my content in a book. That hypothetical possibility is acceptable to me given the reality that NC has been good to me. It has allowed me to get the book published under a CC licence, and it has allowed me to get paid on two occasions recently. Reality trumps hypotheticals.

<cite>By the way, WordPress sucks. A competent web developer — not even expert; just competent — could produce something better, given the features of WordPress I actually see you using here, in a few days.</cite>

I don't claim to be a web developer, and never have, not even a competent one. WP works for me.

But as I keep saying, this doesn't preclude the editor from simply sending an email and asking the author.

Yes — you do keep saying that, as if I don't keep responding that this is far from a universal answer, that it doesn't cover cases where the author gets hit by a bus, is on vacation for a month, loses the incoming email in a spam filter, lost control of an email address to spammers, or otherwise doesn't get the email, doesn't respond to the email, and so on. It also doesn't account for people who have already had bad experiences with non-commercial licensors saying "no" in lengthy streams of invective, or with licensors who've said "That doesn't sound commercial, so don't bother asking," then threatened lawsuits anyway, or who can't even find suitable contact information for licensors at all, to say nothing of those who just figure anyone with an unfriendly license is probably ideologically attached to it and won't make allowances so never asks.

You keep offering a hypothetical editor who doesn't have access to email and therefore finding NC content is an insurmountable barrier. I keep offering examples to the contrary.

An answer that might work, but doesn't always work, is not a meaningful replacement for something that always works (i.e. crossing one's fingers while begging for special dispensation, and often not getting that dispensation, is not a meaningful replacement for licensing that doesn't require someone making the effort to track down authors and beg them for their good will).

Editors do email authors to obtain permission to use the content, it has happened to me.

I have seen the opposite happen, too. I'm preparing to work on a project with someone who took a month of emails back and forth to agree to allowing me to use some of his non-commercial content as part of a larger work just because it was going to be offered under a slightly more liberal license, and not even for any specific desire to make money directly from it — an effort that I was beginning to think was wasted. In the other two cases where I've tried to negotiate something with a non-commercial clause user, the answer has been "no", even though in neither case did I specifically want to use the material in a money-making scheme.

What part of "it's far from a 100% solution" is refuted by "this one time, it went the other way"? You're going to need to cite your source that says your personal anecdotal case of having let someone use your content once or twice adds up to a 100% solution to the problem before I'll accept that as a refutation of my point.

In my experience, this has not been the case whenever I have wanted to use NC content.

Oh, well, if it worked for you a couple of times, I guess it must always work for everyone else. That, or you're missing the point, probably intentionally by now.

The fantasy world is one in which people do not have access to email.

I know a guy who didn't have access to email for a week last year because of financial problems crashing down on his life. I know two or three people who have had to abandon email addresses that were not only their only publicly accessible contact information but also associated with accounts they had for sites where they made their material available so that they could no longer log in for several months, all because of their email accounts being compromised. I have seen people's entire digital lives wiped out by local system infections. Yes, you live in a fantasy world where nothing ever goes wrong, where people don't get in car accidents like a friend of mine who was killed on an Interstate on-ramp in 2004, where people don't get literally thousands of malware infections in a matter of days requiring me to come by and recover their data at a cost of hundreds of dollars when I was doing security compromise recovery work in that same year, where WinXP SP2 didn't reject the SATA controller's driver on one of the computers in a client's office so that the operating system would not finish loading from the SATA drive so that the consultancy that employed me had to send me to his office and get things working again — where, y'know, people aren't able to deal with email for a while, data might be lost, and so on. Out here in reality, things go wrong. Screws fall out all the time. It's an imperfect world. If you think everything is always rosy just because you personally are glued to your email every day and have answered "yes" when asked whether people can use your content, you don't live in the same imperfect world as the rest of us.

But that is the author's prerogative.

I did not make the argument that it is not the author's prerogative, so I do not see how that disputes anything I've said.

You continue to ignore the examples that I have given where my content has been reused commercially, or where I have used NC content commercially simply by asking.

I don't ignore them. I point out that they do not prove anything about the general case, and that there are plenty of cases where things don't go that way. Notice in Carlos' case that he said most lincensors never responded. That's not even the significant minority it would take to make a reasonable person sit up and take notice of the fact that non-commercial licenses create real problems — that's most people in that case. More than half. If you were one of the people who did respond — if you and all your friends were among the people who responded — and said "yes, go ahead, use it," that would not in any way change the fact that most people did not. Your argument, however, seems to suggest that it does change that fact, and when I point out it doesn't, you have the gall to pretend I'm somehow ignoring your statement. Poppycock.

I do not think that NC is as much of a barrier to sharing as you clearly state. I have offered real personal examples where I and others have been able to successfully reuse NC content.

I wonder how many times I've pointed out by now that a handful of anecdotal bits of "evidence" do not prove a systematic "everything is cool" condition, and does not even guarantee that the next time either Carlos or I ask someone the answer will be "yes".

Even if a person cannot share NC content (I have never claimed that this never happens, hence the strawman)

No, that is not how it works. I did not argue that nobody ever allows something distributed under a non-commercial license to be distributed commercially. I did not even argue that it usually happens that way, if only because the statistics to prove the case have not been gathered. I just pointed out that it is a problem that occurs, at least sometimes. You, somehow, seem to think you're disputing what I say by one of two mechanisms, depending on which fallacy you want to employ:

1. Sometimes, you point to yourself and one or two other people you know as counter-examples, as if the fact you might allow a non-commercial work to be distributed commercially somehow solves the problem Carlos had with people who did not respond to give him permission to use their works.

2. Other times, you make bizarre assertions that I'm claiming things I'm not, which is your horribly misaimed strawman fallacy.

this is not problematic from the user's perspective, as they can use other content.

. . .

This is the one that I get the least. How is "love it or leave it" a good argument for disagreeing with political policy? How is "you don't get to use this, but that's fine, because if someone else wrote something that serves the same purpose you could always try to beg them to let you use it instead" not the same damned thing as "love it or leave it"?

Talk about scaremongering! I am perfectly aware of the realities of copyright enforcement, and the application of your scenario to open content is laughable to say the least.

Don't even try. You are the one that claimed that the fact you think people in your country are more easygoing about lawsuits than in other countries somehow makes the use of non-commercial clauses a non-issue for everyone in the world who wants to use any work under a non-commercial license in a borderline case. I'm not scaremongering; I'm pointing out the simple fact that your "Oh, don't worry about it, nobody's ever unreasonable about licensing!" nonsense is directly contradicted by how things work in the real world.

Are you really suggesting that the power of the US enforcement machine will fall upon anyone who ever misuses an NC licence? Really?

No, not really. That's you putting words in my mouth. That's you exercising strawmen again. That's you not actually addressing the arguments I make, and instead attacking things I never said, because you find it easier to ridicule something you invented for the express purpose of making it ridiculous than to actually have an honest discussion with someone who doesn't buy your line of BS.

The reality is that here in Costa Rica people infringe copyright every single day in events, bars, cafes, businesses and concerts, and not a single one is extradited.

Once again, that has nothing to do with the way things work in other countries. That was my point, and here you are blatantly ignoring it to pretend I'm somehow saying that everyone everywhere is always going to prison for violating a non-commercial license. No. That's not what I said. Stop trying to lie to my face about what I said. I know what I said; you can't convince me I said something I did not say. Do you understand yet?

I don't care if you will never be extradited. I'm more worried about whether I will be extradited. I do not live in Costa Rica. I do not want to move to Costa Rica. Your claims about how your country works do not affect the reality elsewhere in the world — but your choice of license does, especially when you write essays trying to convince other people all over the world that it's okay to use the same restrictive license while downplaying the actual effect such a license might have in cases that, frankly, are more likely to differ from yours than to exactly duplicate yours.

I have not seen any evidence whatsoever that my using an NC licence has deterred anyone from sharing my content.

Oh, well, the fact you don't see people who note the license then choose to avoid your work must mean they don't exist. Anyway, this isn't all about you.

I am willing to concede that some person cannot reach me in the future, and that they would not be able to share my content in a book. That hypothetical possibility is acceptable to me given the reality that NC has been good to me.

That is a very different message than what you have been peddling so far — and what you have been saying before this point is the stuff to which I objected. If your message had been "I understand the problems, and I accept them," that would be a very different thing than your tendency thus far to ignore, dismiss, or even try to refute things that really do happen in the real world.

It has allowed me to get the book published under a CC licence, and it has allowed me to get paid on two occasions recently. Reality trumps hypotheticals.

I'm pretty sure I already said that when the most-open license you can get the publisher to allow is a non-commercial license it makes sense to choose that rather than nothing, all else being equal. You're not just arguing for that, though. You're arguing for the notion that for anything other than software there's really not much (if any) benefit to a more-free license.

I don't claim to be a web developer, and never have, not even a competent one.

I didn't say you were. I responded to what you said about WordPress, and pointed out that there are other options.

WP works for me.

You're the participant in this discussion who said something that suggested keeping up with two threads of discussion was too difficult because of your lack of WordPress skills, here — not me. I just responded to that.

Let's concentrate on the two main points of disagreement, funnily enough, I don't have the inclination of continuing with this forever:

<cite>I wonder how many times I’ve pointed out by now that a handful of anecdotal bits of “evidence” do not prove a systematic “everything is cool” condition, and does not even guarantee that the next time either Carlos or I ask someone the answer will be “yes”.</cite>

This is where the main argument lies in my opinion. I guess we completely disagree on what to consider acceptable thresholds of use. To me, NC works fine in a large array of situations: in my blog, in the open access journal that I help edit, in my book, and in the experience of friends. This is a good indication that NC works as intended for large numbers of situations, and the reason why it is still so popular.

I have never claimed that these experiences are universal. I have never claimed that NC works for everyone all the time. I keep stating that in my non-negligible experience, it has worked as intended in all situations.

It is for that reason that I will continue to happily use NC clauses.

You on the other hand continue trying to offer hypothetical situations in which people may not be able to share my content to try to dissuade me (and others) from using NC. I will state this again because you seem to be having trouble understanding this. I am fine with that possibility.

Then you continue offering Carlos' example as a failure of NC licences. I have stated 3 things with that respect:

1. I think that Carlos misread the licence, and that the use was clearly non-commercial.

2. I think the risk assessment was incorrect, as even in a borderline case he could have used the content without fear of retribution. Copyright is never enforced here. Moreover, copyright infringement of this type is NOT a criminal offence, therefore your talk of extradition is ridiculous. The USA is not going to extradite Carlos because he used some music at an event.

3. Even if we ignore points 1 and 2, he was still able to use other music in the event. NonFree content is not the impediment that it is in technical fields.

I am not claiming that NC works 100% of the time, so will you please drop that line of reasoning?

Now on to the second point.

<cite>"This is the one that I get the least. How is “love it or leave it” a good argument for disagreeing with political policy? How is “you don’t get to use this, but that’s fine, because if someone else wrote something that serves the same purpose you could always try to beg them to let you use it instead” not the same damned thing as “love it or leave it”?"</cite>

It is not "love it or leave it" because we are not talking about a binary proposition, it is more nuanced than that. It works like this: you find a picture on Flickr that you really like, and you want to use it in a commercial book. You realise that it is under CC BY-NC-SA. What do you do? I see a whole range of possibilities:

1. You disagree with the person's use of an NC clause, so you do not use that image. This is an ideological decision, and it is perfectly valid, but do not blame the author if that is your choice.

2. You contact the user through Flickr mail, email, or Flickr comment page and ask for permission, the user responds positively and allows you to use the content. Mission accomplished.

3. You try to contact the author and do not receive a response, so you decide to use another image instead.

Our difference of opinion arises (I hope) from 2 and 3. I think that 2 is more common than 3. You seem to imply that 3 trumps all other considerations. My point is that in my experience, the large possibilities of success of point 2 lead me to believe that NC works as intended; if I like the content (I love my book's cover for example), I am perfectly happy to "beg" to use it. You seem incredibly reluctant to acknowledge that this is a viable option, and offer 3 as the killer argument against NC. I do not think that we will agree on this point.

NC is a publishing strategy. It is not perfect, it might get in the way of some people sharing content in the future, but this is a chance NC licensors are willing to take. What I am trying to get you to see is that not everyone shares your values, ideologies and political decisions. In my own personal value hierarchy, interoperability is very low. I value personal freedom of choice, fairness and self-determination higher. Those values are compatible with NC.

I repeat, these are MY values, they are not universal, but they are the reasons why I personally use NC. Other people's decisions are informed by their value hierarchy, and this is fine. The entire point of this blog post, and the ensuing discussion, is that these are valid choices.

I have never claimed that these experiences are universal. I have never claimed that NC works for everyone all the time. I keep stating that in my non-negligible experience, it has worked as intended in all situations.

It is true that you have not explicitly claimed your experience is universally representative, and I have never (improperly) asserted that you made such a claim — though you have improperly asserted that I made universal claims that I never did. You have also used examples of your experience to try to dispute my statements about non-universal problems with non-commercial licenses, as though your experiences were universally representative, even though you did not explicitly claim they were universally representative. This, right here, is my biggest problem with your arguments.

Your experience, by the way, may be "non-negligible" to you, but to many others who have to deal with the other side of the equation and other people than you, your experience really is pretty negligible, because it offers them nothing.

You on the other hand continue trying to offer hypothetical situations in which people may not be able to share my content to try to dissuade me (and others) from using NC.

They're not all hypothetical.

I will state this again because you seem to be having trouble understanding this. I am fine with that possibility.

Yes, I know. I also know that you've tried offering arguments against licenses that allow commercial use (or at least in favor of non-commercial licenses) based on spurious claims that non-commercial clauses don't cause any problems, and many of your arguments are based on claims that I've said things I haven't, including the statement I just quoted that implies I somehow don't understand that you are fine with the possibility that it screws with other people's ability to create new things.

Most of this discussion has not been about whether you are fine with the possibility of your work being less widely distributed, your name being less widely known, others finding it more difficult to use non-commercial licensed content even for projects whose only "commercial" intent is to not take a loss, and so on. It has been about the fact that you recast my statements so that they say things I did not actually say, and you waste a lot of time dismissing arguments based on half-assed justifications rather than addressing what I actually said.

Then you continue offering Carlos’ example as a failure of NC licences.

When you make a claim that amounts to "That's not a problem," I just point out that yes, it is, at least sometimes. Saying you're fine with that problem does not make your claims that there is no problem any more accurate.

I think that Carlos misread the licence, and that the use was clearly non-commercial.

Nice of you to take his comment to mean he's an idiot, and to assume things about the situation that were not stated here. Good job.

Moreover, copyright infringement of this type is NOT a criminal offence, therefore your talk of extradition is ridiculous. The USA is not going to extradite Carlos because he used some music at an event.

My references to extradition were to the general case, and not specifically to Carlos' case. Please stop trying to recast my arguments to mean things they did not actually mean. It's rude, and logically fallacious.

Even if we ignore points 1 and 2, he was still able to use other music in the event. NonFree content is not the impediment that it is in technical fields.

Do you know anything about technical fields? Are you aware that GPL advocates make exactly the same argument you do? In fact, one could argue that because different people can implement exactly the same software functionality with source code different enough that it is separately copyrighted the real problem is with non-software works, because getting the same "features" from a song or essay requires duplicating the content of the copyrighted work, because form and content are the same thing. With software, they are not; the content is source code, and the form is functionality. I think you have your notions of where things are a bigger problem backwards.

I am not claiming that NC works 100% of the time, so will you please drop that line of reasoning?

You aren't making that claim, specifically, but you are using your claims that it works at least sometimes to try to refute my statements that it doesn't work 100% of the time, which is kinda like trying to have your cake and eat it too.

It is not “love it or leave it” because we are not talking about a binary proposition, it is more nuanced than that. It works like this: you find a picture on Flickr that you really like, and you want to use it in a commercial book. You realise that it is under CC BY-NC-SA. What do you do? I see a whole range of possibilities:

Yeah, let's have a look at those possibilities.

You disagree with the person’s use of an NC clause, so you do not use that image. This is an ideological decision, and it is perfectly valid, but do not blame the author if that is your choice.

That's the "love it or leave it" part of the situation.

You contact the user through Flickr mail, email, or Flickr comment page and ask for permission, the user responds positively and allows you to use the content.

That's equivalent to the "change the law" case. It often does not work, setting you back in the "love it or leave it" situation.

You try to contact the author and do not receive a response, so you decide to use another image instead.

That's another "love it or leave it" case.

You seem to imply that 3 trumps all other considerations.

Depending on how you mean that, either "yes" or "no". I don't think that's the only possibility. I do, however, think that when it happens, you're screwed if you can't find an equivalent or better option. On top of that, it's kind of sad that the author of the work in question loses the opportunity for more widespread recognition of his or her work.

My point is that in my experience, the large possibilities of success of point 2 lead me to believe that NC works as intended . . .

. . . sometimes.

I am perfectly happy to “beg” to use it. You seem incredibly reluctant to acknowledge that this is a viable option, and offer 3 as the killer argument against NC.

No. I'm not reluctant to acknowledge that it is an option, at least sometimes. I'm just interested in pointing out that it is also not an option sometimes, despite the fact you are highly resistant to accepting that this is a problem (at least for some people, though you apparently are perfectly happy with other people having problems as long as you never have to deal with those problems).

I do not think that we will agree on this point.

I never tried to make the point that it's never an option, no matter how much you keep trying to pretend that I did, so yeah, I guess we'll never agree on the point that I never made but that you keep insisting on attacking as though I did.

NC is a publishing strategy. It is not perfect, it might get in the way of some people sharing content in the future, but this is a chance NC licensors are willing to take.

1. Non-commercial licensors who are aware of the risk may be willing to take that risk, but those who have not thought things through enough to realize all of the consequences of such things — like the fact that they may never even know someone passed over their work because it's easier to use another work of roughly equal value but a more permissive license than to beg for permission to use a more restrictively licensed work, for instance — may not be willing to take these risks if they should eventually learn about them. Thus, I think it is important to ensure that all factors are available for consideration, and I like to see the possible consequences brought up when people talk about the relative value of a non-commercial license.

2. Non-commercial licenses are often presented as being "free" or "open", even though in reality they are not in any meaningful sense relative to other licenses.

3. Your original piece of writing on why you think non-commercial licenses are great largely ignores or dismisses the negative consequences, and downplays the free/open aspects of the whole thing (which prompted me to start trying to point out these shortcomings). The fact you then went on to argue against my attempts to correct the oversight is kind of annoying, considering you've done so by misrepresenting my arguments so you can attack things I never said (strawman fallacy), using personal anecdotes that are simply not universally representative as though they dispute my statements pointing out that there are problems (not universal problems) that could arise, and finally end up acting like none of it matters because you like non-commercial licenses and are willing to take the hit (thus ignoring the fact that you're evidently trying to influence others to believe similarly without presenting all the facts).

What I am trying to get you to see is that not everyone shares your values, ideologies and political decisions.

I never said, or even implied, that they do. Once again, you are misrepresenting my arguments. What I did was try to point out the fact there are consequences, potentially quite negative, to using restrictive licenses.

I value personal freedom of choice, fairness and self-determination higher.

It is not the case that everyone shares your values, ideologies, and political decisions. What you call "personal freedom of choice" others would call "power to restrict others from exercising personal freedom of choice". What you call "fairness" others might call "bullying". What you call "self-determination" others might call "exercising monopoly over what others possess". Saying all of that immediately after you try to play the "we don't all agree on issues of morals and politics" card is pretty hypocritical. The problem in this case is not that you have different values; it is that you define terms according to your values as though this somehow obviates anyone else's ability to refer to personal freedom, fairness, and self-determination as arguments for something different from what you want people to believe.

The entire point of this blog post, and the ensuing discussion, is that these are valid choices.

When they are informed choices, that may be so. I commented to help inform people about the possible consequences of their choices. I'm pretty sure I never said anything about my purpose here being to suggest you should be locked up in prison for holding different opinions on these matters than me.

I'm very busy today, so a full reply will be forthcoming, but could you do me a favour? I have kept my replies largely civil and impersonal despite the patronising tone and the presence of several insulting and dismissive barbs. There are just too many little comments like the above for it to be a coincidence.

Just go to the "Publications" page, the link is above. Most of what I have written of substance other than the blog and the book are there, as well as a good number of presentations. If you still want to continue using this dismissive tone after reading that, this discussion will soon be over.

Maybe you should do me a favor. Stop trying to twist what I say to make it sound like something it isn't. I asked you a question. That's it. I did not call you names. I did not question your mental capacity. I just asked you a question so that I would not have to do friggin' research into your private and professional life to get an idea of how much you know about the subject you're trying to address.

If you do not have a meaningful response to my point, perhaps you should just accept that fact rather than try to turn this into some kind of case of being vicitimized by someone wanting to ask a question.

<cite> You have also used examples of your experience to try to dispute my statements about non-universal problems with non-commercial licenses, as though your experiences were universally representative, even though you did not explicitly claim they were universally representative. This, right here, is my biggest problem with your arguments.</cite>

sigh… so no matter how many times I state that my experiences are not universal, and no matter how many times I claim that they are not, what matters is your understanding of my intention in offering those experiences… Let me repeat this once more because I am getting tired of repeating this, my experiences with NC are not universal, they are a demonstration that for some people they work as intended. It is a simple point, I understand why you need to twist it to say something else however.

<cite>Yes, I know. I also know that you’ve tried offering arguments against licenses that allow commercial use (or at least in favor of non-commercial licenses) based on spurious claims that non-commercial clauses don’t cause any problems…

How many things do I have to clearly state something until you stop claiming that I have said the opposite. I have never claimed that NC works all the time, or that it never has problems. My claim, which I do not know why I have to continue repeating, is that they work for me and for large numbers of people as intended.

<cite>I just quoted that implies I somehow don’t understand that you are fine with the possibility that it screws with other people’s ability to create new things.</cite>

This is the core of the argument we have, and it is repeated in the "love it or leave it" discussion below, which I will snip because it is relevant here. Free advocates want a world in which everything can be reshared and remixed for whatever purpose. I do not believe that is an attainable goal, people share things out of a variety of reasons, and in my experience, NC users do not have high derivability as an important value. Furthermore, research into how people remix cultural and academic works, the large majority of uses are just that, uses, not the creation of derivatives.

I do not think that "screwing with people's ability to create new things" happens as often as you think it does, and that when it happens it is not such a bad thing.

<cite>It has been about the fact that you recast my statements so that they say things I did not actually say, and you waste a lot of time dismissing arguments based on half-assed justifications rather than addressing what I actually said.<cite>

That is funny coming from someone who continues to twist what I said to imply something that has not been said. I have been trying to stick with the points of disagreement.

<cite>Nice of you to take his comment to mean he’s an idiot, and to assume things about the situation that were not stated here. Good job.</cite>

And you dare accuse me of twisting your words? How in the seven circles of hell do you take a simple statement that I believe someone may have misread a licence to mean that they are an idiot? I happen to admire Carlos a lot, have been following him on Twitter for years, and truly enjoy his output. I can make a statement that he made a legal mistake without implying anything about his mental abilities. I can only assume that you are being purposefully malicious with this statement, I cannot see any other reason for it.

<cite>My references to extradition were to the general case, and not specifically to Carlos’ case. Please stop trying to recast my arguments to mean things they did not actually mean. It’s rude, and logically fallacious.</cite>

Then why mention it as a retort to my clear intention, which was to say that a risk assessment of borderline copyright licence in Costa Rica should never err in the side of caution? YOU were the one who brought up the prospect of US extradition, whether for a specific case or not it is incredibly misinformed. Copyright infringement is rarely a criminal offence.

<cite>No. I’m not reluctant to acknowledge that it is an option, at least sometimes. I’m just interested in pointing out that it is also not an option sometimes, despite the fact you are highly resistant to accepting that this is a problem (at least for some people, though you apparently are perfectly happy with other people having problems as long as you never have to deal with those problems).</cite>

My position is simple:

1. NC is not as problematic as you claim it is because individual terms can be negotiated.

2. Even when it may pose a problem for someone reusing specific content, this is not too problematic as people can use other works.

That is all that is claimed.

<cite>2. Non-commercial licenses are often presented as being “free” or “open”, even though in reality they are not in any meaningful sense relative to other licenses.</cite>

Can you cite examples of how they are presented like that?

3. Your original piece of writing on why you think non-commercial licenses are great largely ignores or dismisses the negative consequences, and downplays the free/open aspects of the whole thing (which prompted me to start trying to point out these shortcomings).

As I clearly stated in the post, it was never the intention to address the arguments in favour of Free licences and licensed works. There are already hundreds of places that do just that, and Free licences even have their own supporting site, to which I link. My intention, as clearly stated, is to offer my own take based on my experiences. You seem to be intent in ascribing universal meaning to my words.

<cite>It is not the case that everyone shares your values, ideologies, and political decisions. What you call “personal freedom of choice” others would call “power to restrict others from exercising personal freedom of choice”. What you call “fairness” others might call “bullying”. What you call “self-determination” others might call “exercising monopoly over what others possess”. Saying all of that immediately after you try to play the “we don’t all agree on issues of morals and politics” card is pretty hypocritical. </cite>

This is the weirdest sentence that you have produced. It is completely evident that these are my own values, and that those are the values that inform MY personal use of NC. So yes, I perfectly accept that someone else may consider those values I have as something else, isn't that what I just wrote?

<cite>The problem in this case is not that you have different values; it is that you define terms according to your values as though this somehow obviates anyone else’s ability to refer to personal freedom, fairness, and self-determination as arguments for something different from what you want people to believe.<cite>

This is again completely bizarre, and I am trying to untangle the thinking process that leads to such a sentence. How can I possibly not make decisions based on the values that I have? This does not obviate the fact that other people have different values, but it obviates me considering those values as more important than my own when making a licensing decision. The very fact that we are having this conversation implies strongly that we have wildly diverging values, wouldn't you agree? That being the case, it is a necessity to obviate most of other people's values in order to operate. If I tried to make every decision, including licensing decisions, thinking that it may clash with other people's values, I would stay in my room and never leave. I will not make decisions based on values other than my own. Does that make me a bad person? I don't think so. Selfish? Probably.

So, based on MY values, and definitions of those values, I am happy using NC licences. It has to be assumed that those values clash with others. That is fine. I refuse to live my life worrying that some people may think that me using an NC licence is tantamount to bullying.

<cite>Most of this discussion has not been about whether you are fine with the possibility of your work being less widely distributed, your name being less widely known, others finding it more difficult to use non-commercial licensed content even for projects whose only “commercial” intent is to not take a loss, and so on. </cite>

I have a proposal of order to make this manageable again. We could abandon the mutual accusations of word-twisting, the animosity and the like, and concentrate on this point.

Do you have any evidence for the above, other than your say-so. This seems to be an important early point for you.

Most of the complaints about non-commercial distribution are indeed bogus. But there are two that I found of particular interest:

– "NC elements pollute the commons because they create incompatible works that cannot be mixed" – but your opinion is that "it is more important to enable sharing, and compatibility is a desired secondary goal". You (and others that choose NC licenses) don't want your works to be used commercially, and have very good arguments for that. But NC clauses have the not-so-good side effect of preventing said works to be remixed with works that are considered "free cultural works". You could dismiss that side-effect with free licenses available on request, but even if "you could just ask, and chances are I would agree to share it for free", said chances would be small. That is because since the remixed work, with your contribution, would be available elsewhere with a commercial license, you'd then think very carefully about giving such a permission.

– "It is unfair for you to profit from your work, and not allow others to do the same". You say that "I find it fair that I should profit from my work" (and who wouldn't!) but here we fall in what I'd call a false dichotomy. Nobody said that you must stop profiting from your work because you allow others to do so. The secret is to profit from your work by your own means, instead of relying on third parties (publishers, websites, etc.) to do so. Print your own books, or strike a deal with a publisher. Put ads in your own website.

– And to finish, one complaint that doesn't appear in the list, but should: "NC licenses prevent your work to be shown in sites that are legally considered commercial, such as pay-per-view events, that don't even profit directly from your work". I had the not-so-good experience of compiling a list of Creative Commons-licensed music for a Free Software event. The problem, however, was that the event was legally considered as a commercial event – even though we took no entry fee! So I had to personally mail every artist for a one-time permission. Most didn't answer. Those who answered, though, gave me a permission. But those who didn't answer couldn't be even played in a free event, just because it was an event! Go figure! The moral is: NC makes your work available on less channels that you may think of. Third-party websites with ads, for example, are anathema for NC works.

<cite>"That is because since the remixed work, with your contribution, would be available elsewhere with a commercial license, you’d then think very carefully about giving such a permission."</cite>

I think carefully about who is asking, and I'm happy to allow commercial uses of my works, and have done so in the past with regards to Flickr pictures. I still feel important to have control over commercial uses.

<cite>"Nobody said that you must stop profiting from your work because you allow others to do so. The secret is to profit from your work by your own means, instead of relying on third parties (publishers, websites, etc.) to do so."</cite>

I'm not sure if I have explained the reason for using NC adequately. In my case I simply don't want to chase people for payment. I don't live directly from my writing (indirectly I do), so I don't want to place adds on the site. Self publishing is the kiss of death for academic publishing, the book was offered to a prestigious academic publisher for the kudos it generates, not because I expect to see a fat pay check at the end of the year (which I do not).

To me NC allows me to continue writing with peace of mind.

<cite>"The problem, however, was that the event was legally considered as a commercial event – even though we took no entry fee!"</cite>

The definition of NC in 3.0 is that the use is "primarily intended for or directed toward commercial advantage or private monetary compensation." It sounds like what you describe is actually not a commercial use.

This is however, a big problem with NC, I suspect that people tend to be more afraid of it than they should.

Is it the fact someone is making money from your work that prompts you to "think carefully about who is asking," or is it the fear that you might be seen as endorsing the work? If the latter, you could easily make it very clear when you do endorse something as a means of distinguishing, without imposing restrictions that may affect others who should not be prevented from using your work.

The kinds of business models Carlos brought up do not require you to chase anyone for payment. Just make a deal, and sell things. What requires "chasing" people is enforcing copyright restrictions such as non-commercial clauses or other commercial reproductions without your authorization.

I don't blame you for accepting a non-commercial license for cutting a deal with an old media publisher. As I said in another response to you here, licenses with non-commercial clauses can help encourage people to edge closer to business models without relying on copyright as a means to control revenue streams. What bothers me is not that you see this as a concession, but that you defend it on its own merits as though using a non-commercial license is inherently good in some way. It should be regarded as a tiny step forward when making deals like that, but nowhere near where you should be, rather than as a good end-point.

While you may think that what Carlos described is not a commercial use, the people whose opinions matter are lawyers, judges, and civil case juries.

There's also the problem that licenses may be mutually incompatible, especially if they are copyleft, "share-alike", or "viral" licenses. Coupled with a non-commercial clause, such licenses can wreak all kinds of havoc on collections of multiple free-to-distribute works using different licenses in a single umbrella work. This is just one reason among many that I prefer copyfree licensing.

<cite>What bothers me is not that you see this as a concession, but that you defend it on its own merits as though using a non-commercial license is inherently good in some way.</cite>

I do not see NC use as a concession, I strongly believe that it is a perfectly fine choice under some circumstances. I am happy with my choice of NC licences and I will continue to use it for most of my content. The fact that you imply that I have to apologise for taking this position is what bothers me.

<cite>While you may think that what Carlos described is not a commercial use, the people whose opinions matter are lawyers, judges, and civil case juries.</cite>

As a lawyer who specialises in CC, has helped port two different jurisdictions, and represents CC at WIPO, I'd like to think that I have a good idea of what is permitted under NC. I'd like to know more details, but from his description I would say that this is clearly non-commercial use as stated in the licence.

<cite>There’s also the problem that licenses may be mutually incompatible, especially if they are copyleft, “share-alike”, or “viral” licenses.</cite>

Licence incompatibility doesn't only occur with NC and non-NC elements, it is a huge problem in FOSS development, even within free licences. Striving towards greater compatibility is one of the reasons for releasing 4.0 licences. However, true 100% compatibility is not completely possible in my opinion.

I don't expect you to apologize — and I don't imply that you must, though you evidently infer that meaning from what I said. I just think you're wrong, and hope you'll eventually change your mind.

The fact you pointed out there are problems outside of non-commercial licenses when it comes to compatibility is in no way a great revelation to me, nor does it dispute or mitigate any problem I've identified or anything I said. I try to avoid other licenses that create compatibility problems, too, including the GPL, the CDDL, the MPL, the Apache License 2.0, the CC-BY license, and so on.

This is precisely the reason why I wrote the post. How can I be wrong in a licensing choice of my own work? I'm not asking you to forego free works, I'm not forcing you to use and reuse my work, I am making a considered decision about the licensing terms with which I decide to share my content. The continuing implication from Free definition proponents that every NC user is wrong is precisely what makes you look like a fanatic.

I wasn't saying specifically that you were wrong in a licensing choice, per se. I was saying that you were wrong about the reasons that a different licensing choice might be better, about the consequences of your licensing choice, and possibly wrong about the ethics of the matter. If you are making incorrect assumptions about the consequences of your actions, you are wrong about those consequences. If both the consequences you assume to apply and the consequences that actually apply match up with exactly what you want to happen, you are not "wrong" about your licensing choice as the right tool to achieve your ends. If only the consequences you assume to apply match up with what you want to happen, and those that actually apply do not, however, then you are in fact not making the correct decision for your goals. Whether that is the case, though, depends on getting you to acknowledge the actual consequences of your decision long enough to consider whether they match what you want.

NC works fine for me, I do not claim anything other than that.

You make more claims than that. You make quite a few claims about the actual consequences of making such a choice — and those are incorrect. That's where you're wrong, and not necessarily in your actual decision to use non-commercial licenses. In short, you may not be wrong in terms of how your decision affects you, but it bothers me that you are wrong in the statements that you make in an attempt to influence how others make decisions.

There's a place for NC, certainly, but it's not free (as in speech) and it's not "open" (as used in the open source/content/licence sense).

It's important that people choosing a CC licence are aware of both the advantages and disadvantages of NC – for instance, NC precludes the use of the licensed material on projects like Wikipedia, to which some would want to contribute their work (I have seen people try to use NC when they wish to donate images to Wikipedia Wikimedia Commons). I've even seen an organisation claim that their NC-licensed content may be used "in the spirit of the commons".

Your statement that "The DFCW was adopted by the Wikimedia Foundation, and therefore the dislike of NC within the open community was cemented" is a non-sequitur; and quite possibly confuses cause an effect.

You say "I have always used NC licences, so I can talk from experience"; but that seems to mean that you can't speak from experience of using CC-By or CC-By-SA. You might find, if you try one of them, that it works well for you; at least for some of your content.

About the blog

TechnoLlama covers several Cyberlaw topics, with emphasis on open licensing, digital rights, software protection, virtual worlds, and llamas. While the blog tackles these issues in a light-hearted and nonchalant manner, some serious points filter through from time to time.

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